1

Filed 8/8/23

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

JAMES V. LACY et al.,

Plaintiffs and Respondents,

v.

CITY AND COUNTY OF SAN 

FRANCISCO et al.,

Defendants and Appellants.

 A165899

 (City & County of San Francisco

 Super. Ct. No. CPF-22-517714)

In 2016, San Francisco voters amended their city charter to authorize 

voting in local school board elections by noncitizen parents and guardians of 

school-age children. In 2022, after multiple school board elections in which 

noncitizens voted, the underlying lawsuit was brought alleging this charter 

amendment violated the California Constitution.

We reject the challenge for two reasons. First, neither the plain 

language of the Constitution nor its history prohibits legislation expanding 

the electorate to noncitizens. Second, the relevant constitutional provisions 

authorizing home rule permit charter cities to implement such an expansion

in local school board elections. This authority is consistent with the 

principles underlying home rule and permits the voters of each charter city to 

determine whether it is good policy for their city or not.
2

BACKGROUND

San Francisco (City)

1 is a charter city and county. In 2016, City 

voters—all United States citizens2—approved Proposition N, amending their

charter to allow resident noncitizens who are adult parents or guardians of 

City children under 19 years old to vote in local school board elections.

3

1 “City” also refers collectively to appellants, the City and County of 

San Francisco and John Arntz, its Director of Elections.

2 (S.F. Charter, art. XVII [“ ‘Voter’ shall mean an elector who is 

registered in accordance with the provisions of state law.”].)

3 The full text of section 13.111 of the San Francisco Charter, which 

was added by Proposition N, is as follows: “(a) Manner of Election. [¶] (1) 

Beginning on January 1, 2017, and ending on the sunset date set forth in 

subsection (a)(2), elections for the Board of Education of the Unified School 

District shall be conducted in a manner that permits any San Francisco 

resident to vote who either: [¶] (A) is a voter, as defined in Article XVII of 

this Charter, or [¶] (B) is the parent, legal guardian, or caregiver (as defined 

in California Family Code Section 6550 or any successor legislation) of a child 

under age 19 residing in the San Francisco Unified School District, is the 

minimum age required under this Charter to vote in a municipal election, 

and is not disqualified from voting under Article II Section 4 of the California 

Constitution or any implementing State statute, regardless of whether the 

person is a United States citizen. [¶] The Board of Supervisors may adopt 

ordinances implementing this subsection (a)(1). [¶] (2) Subsection (a)(1)(B) 

authorizing non-citizens to vote in Board of Education elections shall expire 

by operation of law on December 31, 2022, or on December 31 immediately 

following the third election for members of the Board of Education conducted 

in accordance with this Section 13.111, whichever is later. Thereafter, the 

Board of Supervisors may determine by ordinance whether non-citizens may 

vote in elections for members of the Board of Education. [¶] (b) Limitations. 

This Section 13.111 shall apply only to elections for members of the Board of 

Education of the San Francisco Unified School District. Nothing in this 

Section 13.111 shall affect the terms of office of members of the Board of 

Education, including incumbent members on the effective date of the Charter 

amendment enacting this Section. Nothing in this Section shall alter the 

definition of ‘elector’ or ‘voter’ set forth in Article XVII of this Charter.” 

(Boldface print & fn. omitted.)
3

Proposition N included a sunset provision but authorized the City’s board of 

supervisors (Board of Supervisors) to continue noncitizen voting in school 

board elections by ordinance. (S.F. Charter, § 13.111(a)(2).) The ballot 

pamphlet arguments in favor of Proposition N noted that an estimated onethird of San Francisco public school students have an immigrant parent, 

Proposition N would increase parental involvement in schools, and increased 

parental involvement leads to improved educational achievement. (S.F. 

Voter Information Pamp. (Nov. 8, 2016), proponent’s argument in favor of 

Prop. N, p. 142.)

In 2018, the Board of Supervisors enacted an ordinance implementing 

Proposition N, including provisions requiring the City’s Department of 

Elections to develop a noncitizen voter registration form for school board 

elections. (S.F. Ord. No. 128-18, adding art. X, §§ 1001–1005 to S.F. Mun. 

Code.) Between 2018 and Proposition N’s sunset date, the City held three 

school board elections in which noncitizens voted pursuant to Proposition N. 

In 2021, in anticipation of Proposition N’s sunset date, the Board of 

Supervisors enacted an ordinance making Proposition N permanent for all 

future school board elections. (S.F. Ord. No. 206-21, adding art. X, §§ 1000–

1000.1 to S.F. Mun. Code.) Following the 2021 ordinance, noncitizens voted 

in a school board recall election in February 2022.4

In March 2022, various plaintiffs (Plaintiffs)

5 filed the underlying 

complaint and petition for writ of mandate, arguing Proposition N and its

4 The number of noncitizens voting in the school board elections was 59 

(November 2018), 2 (November 2019), 31 (November 2020), and 235 

(February 2022). 

5 Plaintiffs are James V. Lacy, Michael Denny, the United States 

Justice Foundation, and the California Public Policy Foundation. 
4

enacting ordinances violate the California Constitution and the Elections 

Code. Following briefing and a hearing, the trial court granted Plaintiffs’ 

petition and issued a judgment finding the effective ordinance void and 

unenforceable.6

DISCUSSION

I. California Constitution

Article II, section 2, subdivision (a) of the California Constitution7

states, “A United States citizen 18 years of age and resident in this State may 

vote.” We hereafter refer to this provision as the Citizen Voter Provision. 

The City argues the provision sets only a floor for voter qualifications, and 

does not prohibit expanding the electorate to noncitizens.

8 Plaintiffs argue

the Constitution also establishes a ceiling, precluding such an expansion.

“ ‘ “The principles of constitutional interpretation are similar to those 

governing statutory construction. In interpreting a constitution’s provisions, 

our paramount task is to ascertain the intent of those who enacted it. 

[Citation.] To determine that intent, we ‘look first to the language of the 

constitutional text, giving the words their ordinary meaning.’ [Citation.] If 

the language is clear, there is no need for construction. [Citation.] If the 

language is ambiguous, however, we consider extrinsic evidence of the 

6 The trial court denied the City’s motion to stay the judgment pending 

appeal, filed in anticipation of a November 2022 school board election. This 

court granted the City’s petition for a writ of supersedeas and denied 

Plaintiffs’ subsequent motion for an expedited briefing schedule and an 

injunction prohibiting the City from certifying the election results until the 

appeal was resolved.

7 All undesignated article references are to the California Constitution.

8 This argument is also advanced in amicus briefs filed by three 

professors and by two California school districts. 
5

enacting body’s intent.” ’ ” (Greene v. Marin County Flood Control & Water 

Conservation Dist. (2010) 49 Cal.4th 277, 289–290 (Greene).) 

The City argues the Citizen Voter Provision’s identification of persons 

who “may vote” does not, by its terms, preclude the expansion of the franchise

to noncitizens. The City notes the provision could, but does not, state, “only”

a United States citizen . . . may vote. Plaintiffs point to a separate provision 

directing the Legislature to disqualify certain people from voting: “The 

Legislature shall prohibit improper practices that affect elections and shall 

provide for the disqualification of electors while mentally incompetent or 

serving a state or federal prison term for the conviction of a felony.” (Art. II, 

§ 4.) Plaintiffs argue the two provisions read together set forth the full 

parameters of who may and may not vote, precluding the Legislature from 

expanding the franchise. 

In determining whether the Constitution restricts the power to expand 

the electorate, the relationship between the Constitution and the Legislature 

is critical. “ ‘Unlike the federal Constitution, which is a grant of power to 

Congress, the California Constitution is a limitation or restriction on the 

powers of the Legislature. [Citations.] Two important consequences flow 

from this fact. First, the entire law-making authority of the state, except the 

people’s right of initiative and referendum, is vested in the Legislature, and 

that body may exercise any and all legislative powers which are not expressly 

or by necessary implication denied to it by the Constitution. [Citations.] In 

other words, “we do not look to the Constitution to determine whether the 

legislature is authorized to do an act, but only to see if it is prohibited.” 

[Citation.] [¶] Secondly, all intendments favor the exercise of the 

Legislature’s plenary authority: “If there is any doubt as to the Legislature’s

power to act in any given case, the doubt should be resolved in favor of the 
6

Legislature’s action. Such restrictions and limitations [imposed by the 

Constitution] are to be construed strictly, and are not to be extended to 

include matters not covered by the language used.” ’ [Citations.] On the 

other hand, ‘we also must enforce the provisions of our Constitution and “may 

not lightly disregard or blink at . . . a clear constitutional mandate.” ’ ” 

(County of Riverside v. Superior Court (2003) 30 Cal.4th 278, 284–285

(County of Riverside), italics added; see also Howard Jarvis Taxpayers Assn. 

v. Padilla (2016) 62 Cal.4th 486, 498 (Howard Jarvis) [“ ‘It is well established 

that the California Legislature possesses plenary legislative authority except 

as specifically limited by the California Constitution’ ”].) 

Applying these principles to the Citizen Voter Provision, we agree with 

the City that the plain language does not restrict the Legislature’s 

discretionary power to expand the electorate to noncitizens. The 

Constitution’s affirmative identification of who “may vote” does not expressly 

deny such power. The additional direction to the Legislature to disqualify 

certain groups does not necessarily imply that the Constitution rigidly 

cements the universe of who may and may not vote. Even if the language 

was ambiguous as to whether the Constitution restricted the Legislature’s 

power, any “ ‘ “doubt should be resolved in favor of the Legislature’s 

action.” ’ ” (County of Riverside, supra, 30 Cal.4th at p. 284.) 

Plaintiffs argue we are prevented from reaching such a conclusion by a 

19th century decision, Spier v. Baker (1898) 120 Cal. 370 (Spier). Spier

interpreted the following constitutional language: “Every native male citizen 

of the United States, every male person who shall have acquired the rights of 

citizenship under or by virtue of the treaty of Queretaro,[9] and every male 

9 The Treaty of Queretaro, also known as the Guadalupe Hidalgo 

Treaty, ended the Mexican–American War in 1848. (Ballentine’s Law 
7

naturalized citizen thereof, who shall have become such ninety days prior to 

any election, of the age of twenty-one years, who shall have been resident of 

the State one year next preceding the election, and of the county in which he 

claims his vote ninety days, and in the election precinct thirty days, shall be 

entitled to vote at all elections which are now or may hereafter be authorized 

by law; provided, no native of China, no idiot, no insane person, no person 

convicted of any infamous crime, no person hereafter convicted of the 

embezzlement or misappropriation of public money, and no person who shall 

not be able to read the Constitution in the English language and write his 

name, shall ever exercise the privileges of an elector in this State . . . .” 

(Former art. II, § 1.) 

Spier considered a statute that authorized voting in primary elections 

by persons “who have been legal residents of the county for thirty days prior 

to the election” and by “citizens made so by naturalization upon the day next 

preceding the election,” instead of the ninety day period for county residence 

and naturalization required by the Constitution. (Spier, supra, 120 Cal. at 

p. 376.) The Supreme Court held the statute was “void, as being in direct 

contravention of the constitution of the state. This contravention of the 

constitution consists in this, that a legal residence in the county alone for 

thirty days prior to the election is the only condition required by the act, 

whereas the constitution requires a legal residence in the state for one year, 

and in the county ninety days, and in the precinct thirty days. This 

legislation is also in contravention of the constitution in this, that the 

naturalized citizen under the constitution is not entitled to vote unless his 

Dictionary [entry for “Guadalupe Hidalgo Treaty”]; see also Anderson v. 

Mathews (1917) 174 Cal. 537, 539.)
8

naturalization occurred at least ninety days prior to the day of election.” (Id.

at p. 377, italics added.)

Spier is distinguishable. The Constitution then expressly set forth the 

specific time periods before an election that naturalization and residence 

must take place. The granular specificity of these requirements necessarily 

implied the Legislature was prohibited from authorizing shorter time periods

directly contradicting the Constitution. The language in the Citizen Voter 

Provision is clearly dissimilar; whatever the wisdom of Proposition N, it 

simply does not expressly or by necessary implication directly contravene the 

Citizen Voter Provision.

Plaintiffs emphasize the following discussion in Spier: “[The] legislation 

is not a curtailment of the constitutional right of suffrage, but an 

enlargement of that right. That is, the legislature has attempted to extend 

the right of suffrage to certain classes of citizens outside of those classes 

mentioned in the constitution. If the legislature has such power, it could 

extend the right to aliens, to minors, to women. It has no such power. The 

legislature can no more extend the right of suffrage to persons not included in 

the constitutional provision than it can deprive persons there included of the 

right. The application of the maxim, ‘Expressio unius est exclusio alterius,’

[10]

bears with full force upon this provision of the constitution declaring who are 

competent to vote at elections authorized by the laws of this state.” (Spier,

supra, 120 Cal. at pp. 376–377.) 

10 Under “the interpretive canon expressio unius est exclusio alterius, 

. . . the explicit mention of some things in a text may imply other matters not 

similarly addressed are excluded.” (Howard Jarvis, supra, 62 Cal.4th at 

p. 514.)
9

Spier’s comment that the Legislature had no power to expand the 

franchise “to aliens, to minors, to women”—prospects the Spier court 

apparently found preposterous—was dicta. “As an intermediate appellate 

court, we do not lightly disregard dictum from our Supreme Court. ‘ “Even if 

properly characterized as dictum, statements of the Supreme Court should be 

considered persuasive. [Citation.]” ’ [Citation.] ‘When the Supreme Court 

has conducted a thorough analysis of the issues and such analysis reflects 

compelling logic, its dictum should be followed.’ ” (Bigler-Engler v. Breg, Inc.

(2017) 7 Cal.App.5th 276, 330 (Bigler-Engler).) However, we “may reject 

[Supreme Court] dicta that ‘does not, in our opinion, “reflect[ ] compelling 

logic.” ’ ” (Areso v. CarMax, Inc. (2011) 195 Cal.App.4th 996, 1006.)

Spier’s assertion that the Constitution divested the Legislature of the

power to expand the electorate to noncitizens reflects neither a thorough 

analysis nor compelling logic. The court’s only explanation was its reliance 

on the expressio unius canon, but the application of the canon in this context 

has since been questioned by the Supreme Court, which held that where a 

“constitutional provision[] . . . involves not a grant of authority but a 

limitation on legislative power,” it is inappropriate “to infer from a few 

specific limits on legislative authority the presence of a broader, unstated 

limit on legislative authority.” (Howard Jarvis, supra, 62 Cal.4th at p. 515; 

see also id. at p. 551 (conc. opn. of Corrigan, J.) [“ ‘The people, in their 

Constitution, may place restrictions upon the exercise of the legislative power 

by the Legislature but the courts may not do so without violating the 

fundamental separation of powers doctrine. . . . [L]egislative restraint 

imposed through judicial interpretation of less than unequivocal language 

would inevitably lead to inappropriate judicial interference with the 

prerogatives of a coordinate branch of government. Accordingly, the only 
10

judicial standard commensurate with the separation of powers doctrine is one 

of strict construction to ensure that restrictions on the Legislature are in fact 

imposed by the people rather than by the courts in the guise of 

interpretation.’ ”].) 

Howard Jarvis rejected the argument that three constitutional 

provisions requiring the Legislature to place measures on the ballot for voter 

approval demonstrate the Legislature was precluded from doing so in other 

circumstances: “The expressio unius canon, were we to apply it here, would 

at most support the inference that the three cited instances are an exhaustive 

list of the circumstances in which submission of a matter to a plebiscite is 

mandatory,” but “offer[s] no guidance at all on . . . whether the Legislature in 

its discretion may turn to the voters to ascertain their will concerning” other 

matters. (Howard Jarvis, supra, 62 Cal.4th at p. 515.) Howard Jarvis’s 

discussion of the application of expressio unius to constitutional provisions 

limiting Legislative power is both more recent and more compelling than 

Spier’s unpersuasive dictum, and we therefore decline to follow the latter. 

(Bigler-Engler, supra, 7 Cal.App.5th at p. 330 [declining to follow 

unpersuasive Supreme Court dictum].)

Further support for our construction of the Citizen Voter Provision is 

found in its history. In 1926, the language disqualifying “native[s] of 

China”—present at the time of Spier—was replaced with language 

disqualifying “alien[s] ineligible to citizenship.”11 (Ballot Pamp., Gen. Elec. 

11 “ ‘[A]lien[s] ineligible to citizenship’ . . . was a euphemism for 

Asians.” (Chin, The Civil Rights Revolution Comes to Immigration Law: A 

New Look at the Immigration and Nationality Act of 1965 (1996) 75 N.C. 

L.Rev. 273, 281–282, fn. omitted; see also Terrace v. Thompson (1923) 263 

U.S. 197, 220 [“Generally speaking, the natives of European countries are 

eligible. Japanese, Chinese and Malays are not”].) 
11

(Nov. 2, 1926), Prop. 13 proposed amendment, p. 20, italics omitted.) This 

amendment prohibited the Legislature from enfranchising noncitizens who 

were not eligible for citizenship—a subset of all noncitizens. If the 

Constitution already prohibited the Legislature from enfranchising any

noncitizens, there would have been no reason for the voters to adopt such 

language. Instead, the amendment implicitly acknowledged the Legislature’s

power to enfranchise those noncitizens who were eligible for citizenship.12 In 

1972, the “alien[s] ineligible for citizenship” disqualification was, itself, 

deleted from the Constitution (along with numerous other changes), thereby 

removing that limitation on the Legislature’s discretionary authority to 

expand the franchise to noncitizens. (Ballot Pamp., Gen. Elec. (Nov. 7, 1972), 

Prop. 7 proposed amendments, p. 9.) 

In sum, our analysis is governed by the directive that the Legislature 

retains “ ‘any and all legislative powers which are not expressly or by 

necessary implication denied to it by the Constitution.’ ” (County of 

Riverside, supra, 30 Cal.4th at p. 284.) The Citizen Voter Provision’s 

definition of who “may vote” does not expressly or by necessary implication 

prohibit the Legislature from expanding the electorate to noncitizens.

12 The ballot pamphlet for this amendment was adopted as part of a 

proposition effecting other changes to the provision, and the arguments in the 

ballot pamphlet discuss solely those other aspects and do not mention this 

change. (Ballot Pamp., Gen. Elec. (Nov. 2, 1926), Prop. 13 arguments, p. 18.) 

However, context may be provided by the fact that, historically, it was not 

uncommon for states to enfranchise some noncitizens. (See Minor v. 

Happersett (1874) 88 U.S. 162, 177 [“[C]itizenship has not in all cases been 

made a condition precedent to the enjoyment of the right of suffrage. Thus, 

in Missouri, persons of foreign birth, who have declared their intention to 

become citizens of the United States, may under certain circumstances vote. 

The same provision is to be found in the constitutions of Alabama, Arkansas, 

Florida, Georgia, Indiana, Kansas, Minnesota, and Texas.”].)
12

The question remains whether charter cities may do so. Plaintiffs 

argue that “even if [the Citizen Voter Provision] allows for expansion of 

voting rights, the power to do so is reserved to the Legislature and cannot be 

exercised by the City . . . .” Finding that the Citizen Voter Provision does not 

prohibit the Legislature from expanding the electorate to noncitizens is not 

equivalent to finding that charter cities have that same authority. Unlike 

the Legislature, which is vested with “any and all legislative powers which 

are not expressly or by necessary implication denied to it by the Constitution” 

(County of Riverside, supra, 30 Cal.4th at p. 284), the power of charter cities 

derives from “an ‘affirmative constitutional grant.’ ” (State Building & 

Construction Trades Council of California v. City of Vista (2012) 54 Cal.4th 

547, 556 (State Building).) Two relevant provisions of the Constitution grant 

power to charter cities.

Article IX, section 16, subdivision (a), provides, “It shall be competent, 

in all charters framed under the authority given by Section 5 of Article XI, to 

provide, in addition to those provisions allowable by this Constitution, and by 

the laws of the state for the manner in which, the times at which, and the 

terms for which the members of boards of education shall be elected or 

appointed, for their qualifications, compensation and removal, and for the 

number which shall constitute any one of such boards.”

13 We hereafter refer 

to this provision as the Charter City School Board Provision. 

Article XI, section 5, expressly referenced in the Charter City School 

Board Provision, provides: “(a) It shall be competent in any city charter to 

provide that the city governed thereunder may make and enforce all 

13 “[T]he board of education provided for in a city charter is the 

‘governing board’ of the relevant school district.” (Mendoza v. State of 

California (2007) 149 Cal.App.4th 1034, 1041 (Mendoza).)
13

ordinances and regulations in respect to municipal affairs, subject only to 

restrictions and limitations provided in their several charters and in respect 

to other matters they shall be subject to general laws. City charters adopted 

pursuant to this Constitution shall supersede any existing charter, and with 

respect to municipal affairs shall supersede all laws inconsistent therewith. 

[¶] (b) It shall be competent in all city charters to provide, in addition to those 

provisions allowable by this Constitution, and by the laws of the State for: 

(1) the constitution, regulation, and government of the city police force 

(2) subgovernment in all or part of a city (3) conduct of city elections and 

(4) plenary authority is hereby granted, subject only to the restrictions of this 

article, to provide therein or by amendment thereto, the manner in which, 

the method by which, the times at which, and the terms for which the several 

municipal officers and employees whose compensation is paid by the city 

shall be elected or appointed, and for their removal, and for their 

compensation, and for the number of deputies, clerks and other employees 

that each shall have, and for the compensation, method of appointment, 

qualifications, tenure of office and removal of such deputies, clerks and other 

employees.” We hereafter refer to this provision as the Home Rule Provision.

When considering multiple “provisions . . . in the California 

Constitution, . . . we must view them together as a whole and not in 

isolation.” (County of Riverside, supra, 30 Cal.4th at p. 285.) “Related 

provisions [of the Constitution] ‘should be read together and construed in a 

manner that gives effect to each, yet does not lead to disharmony with the 

others.’ ” (Bighorn-Desert View Water Agency v. Verjil (2006) 39 Cal.4th 205, 

218.) 

The Charter City School Board Provision confers authority on charter 

cities to determine the “manner in which” school board members “shall be 
14

elected . . . .” As our Supreme Court has acknowledged, “the term ‘election’ is 

a general one in which many variations are possible . . . .” (Greene, supra, 49 

Cal.4th at p. 297; see also ibid. [“There is no reason to suppose that the term 

‘election’ has a core meaning of ballot secrecy when the specific constitutional 

provisions authorizing the election indicate otherwise”].) The question before 

us is whether the term “manner” encompasses the authority to determine 

voter qualifications.

The Supreme Court has indicated that “manner” as used in the Home 

Rule Provision should not be narrowly construed. Johnson v. Bradley (1992) 

4 Cal.4th 389 (Johnson) considered whether a charter city ordinance 

providing for partial public funding of city political campaigns was barred by 

a state law banning public financing of elections. The Supreme Court 

expressed “reluctan[ce]” to adopt “the narrow scope of the word ‘manner’ ” 

urged by the challengers, which would “exclude all local election regulations 

except those that may be labeled ‘procedural.’ ”

14 (Id. at pp. 392–393, 403.) 

Although the court ultimately avoided the issue (id. at p. 404), the opinion 

suggests the term should be construed broadly, to include substantive aspects 

of elections. (See also Cawdrey v. City of Redondo Beach (1993) 15 

Cal.App.4th 1212, 1227 [declining to adopt “narrow interpretation” of manner 

as “regulating election procedures only”].)

In addition, the interrelated histories of the Home Rule Provision and 

the Charter City School Board Provision indicate an underlying intent to 

14 The court also expressed hesitance to adopt the city’s argument “that 

partial public financing of municipal election campaigns is ‘one way to elect 

municipal officials.’ ” (Johnson, supra, 4 Cal.4th at p. 403.) Because 

campaign finance regulations are significantly more attenuated from the 

“manner” of elections than voter qualifications, this reluctance is not material 

to the issue before us.
15

confer expansive authority on charter cities in those areas deemed to be 

within their purview, suggesting the language of the provisions should be 

construed broadly to further that intent. “The roots of [the Home Rule 

Provision] trace back more than 100 years. [Citation.] It was originally 

‘enacted upon the principle that the municipality itself knew better what it 

wanted and needed than the state at large, and to give that municipality the 

exclusive privilege and right to enact direct legislation which would carry out 

and satisfy its wants and needs.’ [Citation.] The provision represents an 

‘affirmative constitutional grant to charter cities of “all powers appropriate 

for a municipality to possess . . . .” ’ ” (State Building, supra, 54 Cal.4th at 

pp. 555–556.) 

Historically, the authority now conferred separately by the Home Rule 

Provision and the Charter City School Board Provision was conferred 

together in the same constitutional section. The first home rule provision, 

adopted in 1896, “contained four permissive subdivisions . . . authorizing city 

charters to provide for: (a) police courts, (b) selection of boards of education, 

(c) control and regulation of police, and (d) selection and regulation of boards 

of election.” (Van Alstyne, Background Study Relating to Article XI, Local 

Government, Cal. Const. Revision Com., Proposed Revision (1966) p. 278

(hereafter, Background Study).)15 As explained by an “authoritative 

15 The full text of the original article XI, section 8 1/2 provided: “It 

shall be competent, in all charters framed under the authority given by 

section eight of article eleven of this Constitution, to provide, in addition to 

those provisions allowable by this Constitution and by the laws of the State, 

as follows: [¶] 1. For the constitution, regulation, government, and 

jurisdiction of Police Courts, and for the manner in which, the times at which, 

and the terms for which the judges of such courts shall be elected or 

appointed, and for the compensation of said judges and of their clerks and 

attachés. [¶] 2. For the manner in which, the times at which, and the terms 
16

commentator” (California Fed. Savings & Loan Assn. v. City of Los Angeles

(1991) 54 Cal.3d 1, 17 (CalFed)), the provision was “promulgated to assure 

local control of the described subjects” and, with respect to school board 

members, “to clarify the law, since the pre-1896 cases appeared to regard 

public education as a matter of state wide concern for some purposes 

[citation] but a municipal function for others.” (Background Study, at p. 279.) 

In 1911, the provision was amended to “enlarge[]” charter city authority over 

school board members to include their “ ‘qualifications, compensation, and 

removal.’ ” (Id., at p. 280.) 

Thus, the history of home rule in the California Constitution 

demonstrates an intent to confer broad authority on charter cities over 

municipal affairs generally. Construing the term “manner” in the Charter 

City School Board Provision as encompassing the authority to expand the 

electorate for school board elections furthers that intent and is consistent 

with the purposes underlying home rule: school district elections generally 

for which the members of boards of education shall be elected or appointed, 

and the number which shall constitute any one of such boards. [¶] 3. For the 

manner in which, the times at which, and the terms for which the members 

of the boards of police commissioners shall be elected or appointed; and for 

the constitution, regulation, compensation, and government of such boards 

and of the municipal police force. [¶] 4. For the manner in which, the times 

at which, and the terms for which the members of all boards of election shall 

be elected or appointed, and for the constitution, regulation, compensation, 

and government of such boards, and of their clerks and attachés; and for all 

expenses incident to the holding of any election. [¶] Where a city and county 

government has been merged and consolidated into one municipal 

government, it shall also be competent in any charter framed under said 

section eight of said article eleven, to provide for the manner in which, the 

times at which, and the terms for which the several county officers shall be 

elected or appointed, for their compensation, and for the number of deputies 

that each shall have, and for the compensation payable to each of such 

deputies.” (Former art. XI, § 8 1/2 (1897).)
17

involve local issues and have entirely local impacts. Thus, it makes sense to 

confer on charter cities the authority to expand the electorate where, as here, 

the city’s voters determine that doing so would better serve local needs. 

Conversely, where a charter city’s electorate determines expanding the 

electorate would not serve its local needs, it need not do so. Indeed, 

restricting local governments’ ability to expand the electorate for school board 

elections “may hamper the creation of innovative local government units” and 

prevent citizens from “ ‘devising mechanisms of local government suitable for 

local needs and efficient in solving local problems’ ” (Bjornestad v. Hulse

(1991) 229 Cal.App.3d 1568, 1592 (Bjornestad) [discussing appropriate 

standard of review for vote dilution challenge to franchise expansion])—

precisely the kind of harm that California citizens sought to prevent in 

enacting and expanding charter city home rule authority.16

Further support for this construction is found in the related statutory 

scheme. The Education Code contains a chapter titled, “Conduct of 

Elections,” which includes a provision governing voter qualifications: “In any 

school district or community college district election, the qualifications of 

voters . . . shall be governed by those provisions of the Elections Code 

applicable to statewide elections.” (Ed. Code, § 5390.) However, the chapter 

also includes a section restricting the applicability of its provisions where 

16 Subsidiarity is a political theory that encourages decision making on 

issues at the most local level consistent with their resolution. (See Oxford 

English Dict. (3d ed.) [defining “subsidiarity” as “the principle that a central 

authority should have a subsidiary function, performing only those tasks 

which cannot be performed effectively at a more immediate or local level”].) 

The Home Rule Provision and the Charter City School Board Provision are 

consistent with that principle, which recognizes that what might be a good 

rule for San Francisco may not be one for charter cities in other parts of the 

state, and that the local voters should be the ones who decide.
18

contrary election rules are set out in a city’s charter: “The provisions of this 

chapter shall apply to all district elections, except as otherwise provided by 

law, or as otherwise provided in the charter of any city or city and county in 

the matters concerning which the provisions of such charters are afforded 

controlling force and effect by the Constitution or laws of the state.” (Ed. 

Code, § 5301, italics added.) Thus, the statutory scheme accommodates the 

possibility that charter cities would expand the electorate for school board 

elections beyond that provided for by state law.

17 This implicit legislative 

recognition that “manner” as used in the Charter City School Board Provision 

may include voter qualifications is significant in light of the “settled principle 

of construction” affording a “strong presumption in favor of the Legislature’s 

interpretation of a provision of the Constitution.” (Methodist Hosp. of 

Sacramento v. Saylor (1971) 5 Cal.3d 685, 692.) This principle directs that 

“ ‘[w]hen the Constitution has a doubtful or obscure meaning or is capable of 

various interpretations, the construction placed thereon by the Legislature is 

of very persuasive significance.’ ” (Id. at p. 693; accord, Mt. San Jacinto 

Community College Dist. v. Superior Court (2007) 40 Cal.4th 648, 656.)

In arguing against this construction, Plaintiffs rely on a host of 

contentions that we find unavailing. First, Plaintiffs point to People ex rel. 

Devine v. Elkus (1922) 59 Cal.App. 396 (Elkus), which considered a challenge 

to a charter city’s system of ranked voting for a nine-member city council 

17 The Legislature has elsewhere used the term “manner” to suggest it 

includes voter qualifications, albeit outside of the school board context. (See 

West’s Ann. Wat.–Appen., § 106-7 [“the directors shall be elected in the 

manner prescribed for general elections in reclamation districts as set forth 

in Division 15 (commencing with Section 50000) of the Water Code” (italics 

added)]; Wat. Code, § 50016 [part of Div. 15: “ ‘Voter’ means a landowner or 

the legal representative of a landowner”].)
19

whereby each ballot was counted for no more than one council candidate. (Id.

at p. 397.) The Court of Appeal held “[t]he election of nine members of the 

city council is the election of persons to nine offices as fully as if the offices 

were distinct in name and in the duties to be discharged,” and therefore the 

charter city’s system was “violative of the elector’s constitutional right to vote 

at all elections.” (Id. at pp. 399, 407.) Elkus thus considered a charter city’s 

restriction of voting rights, specifically, a system that effectively prevented 

voters from casting a ballot for each open office. In considering this issue, the 

court rejected the argument that a charter city’s authority to determine the 

“manner” of election for municipal officers encompassed the authority to 

abridge the right to vote: “[B]y the adoption of section 8 1/2 [the original 

home rule provision], the people have not ‘expressed with irresistible 

clearness’ an intention to infringe and overthrow the fundamental right 

guaranteed by the constitution to every qualified elector of voting at all 

elections.” (Id. at p. 405.) The issue decided in Elkus is not before us.

As Plaintiffs emphasize, Elkus included quotes from out-of-state cases 

and dicta suggesting that “manner” does not encompass a determination of 

voter qualifications. (Elkus, supra, 59 Cal.App. at pp. 404–405.) But this 

was not the issue before that court. (Id. at p. 397 [“The only question 

presented by this appeal is whether such proportional representation system 

is constitutional”].) “As we have repeatedly observed, ‘ “cases are not 

authority for propositions not considered.” ’ ” (B.B. v. County of Los Angeles

(2020) 10 Cal.5th 1, 11.) Elkus does not direct a narrow reading of the term 

“manner.”18 

18 Plaintiffs’ contention that voters knew “manner” did not include voter 

qualifications when they adopted the Charter City School Board Provision

because Elkus had already been decided is contradicted by the history, 
20

Plaintiffs rely on the canon of interpretation that “a word may be 

defined by its accompanying words and phrases, since ‘ordinarily the coupling 

of words denotes an intention that they should be understood in the same 

general sense.’ ” (California Farm Bureau Federation v. California Wildlife 

Conservation Bd. (2006) 143 Cal.App.4th 173, 189.) Plaintiffs argue that 

“manner” is accompanied by “times” and “terms,” words which do not suggest 

an expansive meaning. But “times” and “terms” are not the only 

accompanying words and phrases: the grouping also confers authority on 

charter cities to determine the “qualifications” of school board members. 

Qualifications of voters and qualifications of candidates for elective office are 

of a similar type. For example, the Constitution provides, “The right to vote 

or hold office may not be conditioned by a property qualification.” (Art. I, 

§ 22, italics added.) This grouping thus supports a construction of “manner” 

to encompass the authority to expand the electorate.19

Plaintiffs suggest the Charter City School Board Provision should be 

narrowly construed because education is a statewide concern. As a general 

matter, it is well-established that education is a statewide concern. “[T]he 

California Constitution makes public education uniquely a fundamental 

related above, demonstrating the provision granting charter cities authority 

to determine the “manner” of electing school board members was originally

adopted in 1896, long before Elkus was decided. 

19 Plaintiffs’ argument regarding the use of “manner” in the United 

States Constitution, which appears in the more limited grouping “Times, 

Places and Manner” (U.S. Const. art. I, § 4, cl. 1), is therefore inapposite. 

Similarly, Libertarian Party v. Eu (1980) 28 Cal.3d 535, relied on by 

Plaintiffs, which discussed federal cases in determining whether a statute 

governing the party identification of candidates “constitutes an 

unconstitutional impairment of the fundamental rights to associate for 

political activity and to vote” (id. at p. 542), is not relevant to the issue before 

us.
21

concern of the State . . . .” (Butt v. State of California (1992) 4 Cal.4th 668, 

685.) “[E]ducation and the operation of the public schools remain matters of 

statewide rather than local or municipal concern. [Citations.] Hence, local 

school districts are deemed to be agencies of the state for the administration 

of the school system and have been described as quasi-municipal 

corporations.” (California Teachers Assn. v. Hayes (1992) 5 Cal.App.4th 1513, 

1524.) “The Legislature’s power over the public school system has been 

variously described as exclusive, plenary, absolute, entire, and 

comprehensive, subject only to constitutional constraints.” (Ibid., italics 

added.)

One of these “constitutional constraints” is the Charter City School 

Board Provision, that expressly confers on charter cities certain authority 

over local school board members. “Management and control of the public 

schools is a matter of state care and supervision; local districts are the state’s 

agents for local operation of the common school system. [Citation.] [¶] 

However, certain powers of local districts are enshrined in the California 

Constitution. Thus, [the Charter City School Board Provision] guarantees to 

charter cities the right to provide ‘for the manner in which, the time at which, 

and the terms for which members of boards of education shall be elected or 

appointed, for their qualifications, compensation and removal, and for the 

number which shall constitute any one of such boards.’ ” (Mendoza, supra,

149 Cal.App.4th at p. 1052.) 

As Plaintiffs argue, the Charter City School Board Provision appears in 

the article governing education, rather than the article governing local 

government. However, as noted above, authority over the manner of electing 

school board members was part of the original home rule provision. Prior to 

its transfer to the education article, a 1966 report for the Constitution 
22

Revision Commission recommended the provision be retained “to encourage 

experimentation and variation in school district organization.” (Allen & 

Briner, A Study of the Educational Provisions of the California State 

Constitution (1966) p. 41.)20 The 1970 voter pamphlet for the ballot 

proposition moving the provision out of the local government article (among 

numerous other changes) indicated no substantive change was intended: “No 

change is made in the existing powers of the Legislature or local governments 

to deal with regional problems. No additional legislative power in this area is 

provided by Proposition 2. [¶] Proposition 2 takes some powers from the 

Legislature and gives it back to the local communities in appropriate areas, 

thus strengthening local government.” (Ballot Pamp., Prim. Elec. (June 2, 

1970), rebuttal to argument against Prop. 2, p. 8.) Similarly, when the 

provision was moved to the education article two years later, the legislative 

counsel’s analysis stated the proposition would “transfer[], without 

substantive change,” various provisions, including the new article IX, 

section 16, the Charter City School Board Provision. (Ballot Pamp., Prim. 

Elec. (June 6, 1972), detailed analysis by the legislative counsel of Prop. 10, 

p. 25.)

Plaintiffs argue that, even if the City can expand the electorate in 

elections for municipal officers, it cannot do so in school board elections. 

Plaintiffs point to the Home Rule Provision’s use of the word “plenary” to 

characterize the authority conferred over the manner of electing or 

appointing municipal officers and employees, in contrast to the Charter City 

20 The recommendation of a different commentator that “consideration 

should be given to the desirability and propriety of eliminating” charter city 

authority over the manner of selection of school board members (Background 

Study, p. 286), did not prevail.
23

School Board Provision. (Compare Charter City School Board Provision [“It 

shall be competent, in all charters framed under the authority given by [the 

Home Rule Provision], to provide, in addition to those provisions allowable by 

this Constitution, and by the laws of the state for the manner in which, the 

times at which, and the terms for which the members of boards of education 

shall be elected or appointed”], with Home Rule Provision [“(b) It shall be 

competent in all city charters to provide, in addition to those provisions 

allowable by this Constitution, and by the laws of the State for: . . . (4) 

plenary authority is hereby granted, subject only to the restrictions of this 

article, to provide therein or by amendment thereto, the manner in which, 

the method by which, the times at which, and the terms for which the several 

municipal officers and employees whose compensation is paid by the city 

shall be elected or appointed” (italics added)].) Plaintiffs rely on the principle 

that “ ‘ “[w]here different words or phrases are used in the same connection in 

different parts of a statute, it is presumed the Legislature intended a 

different meaning.” ’ ” (Ferra v. Loews Hollywood Hotel, LLC (2021) 11 

Cal.5th 858, 866.) 

The argument is unpersuasive for two reasons. First, the word 

“plenary” modifies the authority conferred, but the relevant issue here is 

whether the word “manner” encompasses an expansion of the electorate. 

Whether a charter city’s authority over the manner of an election is plenary 

or not leaves unaffected the meaning of the word “manner.” 

Second, the legislative history does not indicate that the addition of the 

word “plenary” was intended to distinguish a charter city’s substantive 

authority in that area from its authority in other areas identified by the 

Constitution. Before the 1914 addition of “plenary,” the home rule provision 

provided for a charter city’s authority over the manner of election or 
24

appointment of school board members and, in a separate provision, provided 

a consolidated city and county’s authority over the manner of election or 

appointment of “the several county and municipal officers and employees 

whose compensation is paid by such city and county . . . .”21 (Ballot Pamp., 

Gen. Elec. (Nov. 3, 1914), existing law relating to Prop. 19, p. 92.) The latter 

provision was amended in 1914 to apply to “any city or consolidated city and 

county,” and the phrase, “and plenary authority is hereby granted” was 

added.22 (Ballot Pamp., Gen. Elec. (Nov. 3, 1914), proposed law for Prop. 19, 

p. 90.) The word “plenary” was not added with respect to any other authority 

conferred in the home rule provision.

The arguments in favor of the 1914 amendment explained the proposed 

amended subdivision “is identical with the present subdivision, except that it 

is worded to make it certain that all cities as well as consolidated cities and 

counties shall have the right to provide in their charters for the election, 

21 In relevant part, this provision read, “Where a city and county 

government has been merged and consolidated into one municipal 

government, it shall also be competent, in any charter framed under said 

section eight of said article eleven, or by amendment thereto, to provide for 

the manner in which, the times at which and the terms for which the several 

county and municipal officers and employees whose compensation is paid by 

such city and county . . . shall be elected or appointed . . . .” (Ballot Pamp., 

Gen. Elec. (Nov. 3, 1914), existing law relating to Prop. 19, p. 92, italics 

omitted.) 

22 In relevant part, the amended provision read, “It shall be competent 

in any charter framed in accordance with the provisions of this section, or by 

section eight of this article, for any city or consolidated city and county, and 

plenary authority is hereby granted, subject only to the restrictions of this 

article, to provide therein or by amendment thereto, the manner in which, 

the method by which, the times at which, and the terms for which the several 

county and municipal officers and employees whose compensation is paid by 

such city or city and county . . . shall be elected or appointed . . . .” (Ballot 

Pamp., Gen. Elec. (Nov. 3, 1914), proposed law for Prop. 19, p. 90.) 
25

terms of office, compensation and removal of their officials and employees.” 

(Ballot Pamp., Gen. Elec. (Nov. 3, 1914), argument in favor of Prop. 21, p. 

88;

23 see also Background Study, p. 281 [relevant 1914 amendment “was 

intended to ‘make it certain’ that charter cities, being omitted from the 

language of the 1911 provision [granting a consolidated city and county 

authority over the manner of election or appointment of its officers and 

employees], would not be construed to have less authority than consolidated 

municipalities”].) In Johnson, supra, the Supreme Court indicated the 

addition of “plenary,” along with other amendments, was to address the issue 

of “ ‘bulky charters’ ” resulting from previous judicial constructions finding 

“laws regulating municipal elections and compensation of municipal officers 

. . . could be given no effect if the city charter was silent on that subject.” 

(Johnson, supra, 4 Cal.4th at pp. 396–397.) 

Because “plenary” modifies authority, not manner, and because there is 

no indication that its addition was intended to distinguish the substance of a 

charter city’s authority over municipal elections from that of a charter city’s 

authority over school board elections, we are not persuaded that the 

Constitution grants charter cities less authority in determining the nature of 

the electorate with respect to school board members than as to municipal 

officers. Thus, we reject Plaintiffs’ argument that, even if a charter city can 

expand the franchise for municipal officer elections, it cannot do so for school 

board elections.

23 Although this argument was made with respect to a competing, 

unsuccessful proposition proposing amendments to the same constitutional 

provision, the argument addressed proposed language identical to that 

adopted by the voters. (Compare Ballot Pamp., Gen. Elec. (Nov. 3, 1914), 

Prop. 21, proposed subd. 4, p. 85, with id., Prop. 19, proposed subd. 4, p. 90.) 
26

Plaintiffs argue a construction that allows charter cities to expand the 

franchise for school board elections could lead to absurd consequences, such 

as allowing Texas residents to vote in such elections. We doubt such an 

expansion would survive challenges under other constitutional provisions. 

(See Day v. Robinwood West Community Improvement Dist. (E.D. Mo. 2010) 

693 F.Supp.2d 996, 1005 (Day) [“courts facing vote dilution claims have held 

that a legislature’s decision to expand the electorate is irrational and 

therefore unconstitutional where the enfranchised voters do not have a 

‘substantial interest’ in the outcome of the election”].) In any event, 

Plaintiffs’ contention that the construction we adopt will lead to bad policy is, 

like the City’s contention that it will lead to good policy,

24 not material to the 

legal issue before us. “It is not our province to approve good legislation and 

condemn bad legislation. . . . [T]he remedy for unwise legislation is not with 

the courts, but with the people. In the present proceeding, it is our duty 

alone to pass upon the validity of this act, tested by the various provisions of 

the constitution of the state.” (Spier, supra, 120 Cal. at p. 372.)

Though the Charter City School Board Provision contains no express 

grant of authority to expand the franchise, the provision is a broad grant of 

power to a charter city to determine how to select school board members. A

charter city’s authority over the “manner” of school board member elections 

under the Charter City School Board Provision encompasses the authority to 

expand the electorate implemented by Proposition N.

25 Because the voter24 Policy arguments in favor of Proposition N are also advanced in 

amicus briefs filed by three professors and filed on behalf of a number of 

nonprofit community organizations. 

25 The City argues in the alternative that Proposition N is authorized 

by the Charter City School Board Provision’s grant of power to appoint school 
27

approved Proposition N validly exercised this authority to expand the 

electorate for school board elections to include noncitizen parents and 

guardians of City children, we reverse the trial court’s ruling declaring

Proposition N void and unenforceable.

26 

This conclusion does not leave charter cities with limitless authority to 

determine the electorate for school board elections or, for that matter, the

election of other municipal officials. “[E]ven if a given matter is deemed to be 

a municipal affair, a charter city’s regulation remains subject to the various 

guarantees and requirements of the state and federal Constitutions.” 

(Johnson, supra, 4 Cal.4th at p. 403, fn. 15.) Our conclusion leaves intact the 

application of other constitutional “guarantees and requirements,” for 

example, the state and federal equal protection clauses (see post, part III). 

No party argues Proposition N was motivated by a desire to favor or disfavor 

any particular racial or ethnic group, and whether and how such evidence 

would impact the constitutionality of the proposition is thus not before us.

27

Similarly, as Proposition N expanded the franchise, we do not opine on 

board members. (See Wheeler v. Herbert (1907) 152 Cal. 224, 232.) Because 

we uphold Proposition N pursuant to the City’s authority to determine the 

“manner” in which school board members are elected, we need not and do not 

decide whether it can also be upheld under the City’s alternative argument.

26 As noted above (fn. 12, ante), noncitizen voting in state and/or local 

elections is not without historical precedent. Nor is it without precedent

today. (See 18 U.S.C. § 611, subd. (a) [prohibiting noncitizens from voting in 

federal elections unless “the election is held partly for some other purpose” 

and noncitizens “are authorized to vote for such other purpose under a State 

constitution or statute or a local ordinance”]; Ferry v. City of Montpelier (Vt., 

Jan. 20, 2023) 2023 VT 4 [Vermont Constitution does not prohibit noncitizen 

voting in local elections].) 

27 We address equal protection vote dilution claims raised by amici 

below (post, part III). 
28

charter cities’ ability to narrow it. We decide today solely the issue before us: 

the Constitution confers on the City the authority to expand the electorate for 

school board elections to include noncitizen parents or guardians of City

children.

II. State Law

State statutes generally provide that voters in school district elections 

must be citizens. (See Ed. Code, § 5390 [“In any school district . . . election, 

the qualifications of voters . . . shall be governed by those provisions of the 

Elections Code applicable to statewide elections”]; Elec. Code, § 2101, 

subd. (a) [“A person entitled to register to vote shall be a United States 

citizen”].) Such statutes, if applicable, would conflict with Proposition N.

However, as discussed above, the Education Code expressly exempts 

from these provisions school board elections where the city charter provides 

otherwise as to matters “afforded controlling force and effect by the 

Constitution.” (Ed. Code, § 5301 [“The provisions of this chapter [including 

Ed. Code, § 5390] shall apply to all district elections, except as otherwise 

provided by law, or as otherwise provided in the charter of any city or city 

and county in the matters concerning which the provisions of such charters 

are afforded controlling force and effect by the Constitution or laws of the 

state”].) Because we conclude the Charter City School Board Provision 

“afford[s] controlling force and effect” to Proposition N, state law does not 

conflict with Proposition N.28

28 Because we are not presented with a conflicting state law, we need 

not and do not decide whether Proposition N implicates a municipal affair or 

a statewide concern under the analytical test set forth in CalFed, supra, 54 

Cal.3d at pages 16–17. (See id. at p. 16 [if there is no “actual conflict 

between” a state statute and charter city measure, “a choice between the 

conclusions ‘municipal affair’ and ‘statewide concern’ is not required”].)
29

III. Vote Dilution

In an amicus curiae brief, the Immigration Law Reform Institute (IRLI) 

raises an argument not advanced by the parties, that Proposition N violates 

the equal protection clauses of the United States Constitution and the 

California Constitution by impermissibly diluting the votes of citizens. (U.S. 

Const., 14th Amend.; Cal. Const., art. I, § 7; Reynolds v. Sims (1964) 377 U.S. 

533, 555 [“the right of suffrage can be denied by a debasement or dilution of 

the weight of a citizen’s vote just as effectively as by wholly prohibiting the 

free exercise of the franchise”].)

“ ‘Generally courts will only consider issues properly raised by the 

parties on appeal. [Citations.] However, the Supreme Court has recognized

two exceptions to this rule,’ ” including that, “ ‘under the theory that an 

appeal should be affirmed if the judgment is correct on any theory, amicus 

curiae may raise an issue which will support affirmance.’ ” (Sacramento 

County Employees’ Retirement System v. Superior Court (2011) 195 

Cal.App.4th 440, 473.) Because IRLI’s constitutional argument supports 

affirmance of the judgment, we will consider the new argument.

When a claim of vote dilution is based on an expansion of the 

electorate, lower federal courts have overwhelmingly applied rational basis 

review. (See Day, supra, 693 F.Supp.2d at p. 1005 [“Courts confronting equal 

protection claims asserting vote dilution resulting from expansion of the voter 

base have generally employed a standard at the rational basis end of the . . . 

spectrum” (citing cases; fn. omitted)]; May v. Town of Mountain Village (D. 

Colo. 1996) 944 F.Supp. 821, 824 (May) [“Where a law expands the right to 

vote causing voting dilution, the rational basis test has been applied by the 

vast majority of courts.” (collecting cases)], affd. (10th Cir. 1997) 132 F.3d 
30

576.)29 “While the lower federal courts’ decisions do not bind us, we give 

them ‘great weight’ when they reflect a consensus, as they do here.” (Coral 

Construction, Inc. v. City and County of San Francisco (2010) 50 Cal.4th 315, 

329–330.)

As explained by one California court, “The rational basis test is 

employed in these federal cases for a number of reasons. First, these cases

. . . do not concern electoral schemes that deny the franchise to citizens who 

are otherwise qualified by residence and age. [Citation.] . . . In the rational 

basis cases, the election laws expand rather than restrict the franchise. 

[Citation.] . . . [O]verinclusiveness is a lesser constitutional evil than 

underinclusiveness. [Citation.] . . . Also flowing from the . . . contrast 

[between cases applying strict scrutiny and rational basis review] is the issue 

of the nature of the governmental entity involved—is it a district of limited 

purpose and powers or a body exercising general governmental powers? 

[Citations.] Related to this inquiry is another substantial concern—that a 

strict scrutiny approach may hamper the creation of innovative local 

government units. . . . ‘The Constitution does not require that a uniform 

29 May and Day are examples of this general rule. In May, a Colorado 

town “extend[ed] the right to vote in its municipal elections to people located 

throughout the United States and possibly abroad who own property in the 

Town but who do not reside in the Town.” (May, supra, 944 F.Supp. at 

p. 822.) The district court found rational basis review applied to a vote 

dilution challenge because the scheme “expands the right to vote and equally 

weighs the votes of all allowed to vote.” (Id. at p. 824.) In Day, a Missouri

law allowed both residents and nonresident property owners to vote in 

community improvement district elections. (Day, supra, 693 F.Supp.2d at 

p. 1004.) In considering the argument that property owner voters did not 

have to be citizens or residents, the court held, “this classification is not a 

severe voting restriction or an example of invidious discrimination, and it is 

therefore subject to rational basis review.” (Id. at p. 1007.) 
31

straitjacket bind citizens in devising mechanisms of local government 

suitable for local needs and efficient in solving local problems.’ [Citations.] 

. . . Finally, the rational basis cases do not deal with malapportionment of a 

general governmental entity resulting in lesser-weighted votes on an 

individual basis, or with discrete and insular groups foreclosed hopelessly 

from the political process, or with invidious discrimination.” (Bjornestad,

supra, 229 Cal.App.3d at p. 1592.) Even assuming school boards exercise 

general governmental powers, IRLI does not contend this factor is significant,

and every other factor identified by Bjornestad applies here. 

A federal court of appeals further explained the reason for applying 

rational basis review in such cases: “Merely expanding the voter rolls is, 

standing alone, insufficient to make out a claim of vote dilution. The reason 

for this conclusion can best be illustrated by an example. If a political entity 

elects to alter its voting requirements, for example by lowering the voting 

age, it will expand the voting rolls. This dilutes the votes of those already 

registered to vote. But it does not do so unconstitutionally, even though the 

state does not have a compelling state interest in lowering the voting age. . . .

[¶] To hold otherwise would have either of two effects. It would make any 

expansion of the voting rolls subject to attack because the state did not have 

a compelling state interest warranting the change. This would leave the 

scope of the franchise static and virtually unchangeable. The second 

alternative is that courts, seeing the potential harm posed by the first, would 

subvert the compelling state interest test, a critical facet of our constitutional 

jurisprudence, and leave only the title, but not the substance. Therefore, we 

conclude that requiring a compelling state interest to justify expanding the 

franchise is unworkable and inappropriate for this case.” (Duncan v. Coffee 

County, Tenn. (6th Cir. 1995) 69 F.3d 88, 94–95 (Duncan).) We find the 
32

reasoning of the above federal cases persuasive and applicable, and conclude 

that rational basis review applies to IRLI’s vote dilution claim.

IRLI argues that, despite these cases, Proposition N should be reviewed

under a strict scrutiny standard because citizenship is a protected class and

because voting is a fundamental right. The contentions are unavailing. IRLI

cites no authority holding citizens are a protected class, but instead argues 

they must be because noncitizens are a protected class. Suspect 

classifications are designated as such because “[t]hese factors are so seldom 

relevant to the achievement of any legitimate state interest that laws 

grounded in such considerations are deemed to reflect prejudice and 

antipathy—a view that those in the burdened class are not as worthy or 

deserving as others. For these reasons and because such discrimination is 

unlikely to be soon rectified by legislative means, these laws are subjected to 

strict scrutiny and will be sustained only if they are suitably tailored to serve 

a compelling state interest.” (City of Cleburne, Tex. v. Cleburne Living Center

(1985) 473 U.S. 432, 440.) The United State Supreme Court held noncitizens 

“as a class are a prime example of a ‘discrete and insular’ minority [citation] 

for whom such heightened judicial solicitude is appropriate.” (Graham v. 

Richardson (1971) 403 U.S. 365, 372.) Citizens, as a class, are not a discrete 

and insular minority, nor is discrimination against citizens unlikely to be 

soon rectified by legislative means. Indeed, it was an electorate composed 

solely of citizens that voted in favor of Proposition N, and an electorate 

composed solely of citizens could again amend the City’s charter to prohibit 

noncitizen voting in school board elections. We see no basis to treat citizens 

as a class subject to heightened scrutiny.

IRLI’s second argument fares no better. The fact that voting is a 

fundamental right is not sufficient, on its own, to trigger heightened scrutiny. 
33

The United States Supreme Court has held it is an “erroneous assumption 

that a law that imposes any burden upon the right to vote must be subject to 

strict scrutiny. Our cases do not so hold.” (Burdick v. Takushi (1992) 504 

U.S. 428, 432.) As discussed above, numerous lower federal courts have 

persuasively held vote dilution cases based on an expansion of the franchise 

are properly reviewed under rational basis review, despite the claimed 

impact on the right to vote. IRLI makes no attempt to distinguish these 

cases, which also involved the fundamental right to vote, and we see no basis 

for such a distinction. 

Accordingly, we find rational basis review applies. IRLI does not 

contend Proposition N cannot survive rational basis review. We agree with 

the implied concession. In adopting Proposition N, the electorate could 

reasonably find that extending the franchise to noncitizen parents or 

guardians of school-age children will increase parental involvement in 

schools, which will in turn improve educational outcomes. (See Day, supra,

693 F.Supp.2d at p. 1007 [“it is perfectly logical for the legislature to grant 

voting rights to all nonresident property owners in a [community 

improvement district], not only those nonresidents who reside in Missouri 

and are U.S. citizens” because of the “effect on property owners of local 

taxation for public improvements—one of the principal purposes of 

[community improvement district] creation”]; see also Duncan, supra, 69 F.3d 

at p. 94 [“A decision to include ‘out-of district’ voters in the election is not 

irrational if [the government] can show that those voters have a substantial 

interest in the . . . election”].) We see no basis for a different result under the 

California Constitution’s equal protection clause. (Jauregui v. City of 

Palmdale (2014) 226 Cal.App.4th 781, 800 [“California decisions involving 

voting issues quite closely follow federal Fourteenth Amendment analysis”].)
34

In a separate argument, amicus curiae Kenneth Blackwell contends 

Proposition N “could” dilute the voting strength of Black citizens of the City. 

Blackwell’s assertions about the possible dilutive effects of Proposition N are 

entirely speculative, and he does not contend any such dilution was the 

intent of voters in adopting Proposition N. Blackwell presents no legal basis 

to affirm the trial court.

DISPOSITION

The judgment is reversed and remanded to the trial court with 

directions to enter a new judgment in favor of the City. The City is awarded 

its costs on appeal.

SIMONS, Acting P.J.

WE CONCUR:

BURNS, J.

CHOU, J.

Lacy v. City & County of San Francisco (A165899)
35

Trial Court: City and County of San Francisco Superior Court

Trial Judge: Hon. Richard B. Ulmer, Jr.

Counsel: David Chiu, City Attorney, Wayne Snodgrass, and James 

M. Emery, Deputy City Attorneys for Defendants and 

Appellants

Keker, Van Nest & Peters, R. Adam Lauridsen, Connie P. 

Sung, and Stephany Martinez Tiffer for Ron Hayduk, 

Hiroshi Motomura, and Jennifer M. Chacón as Amicus

Curiae on behalf of Defendants and Appellants

Orrick Herrington & Sutcliffe, Mark S. Davies, Sheila 

Baynes, Kufere Laing, and John Palmer for Oakland 

and San Diego Unified School Districts as Amicus 

Curiae on behalf of Defendants and Appellants

ACLU Foundation of Northern California, Angélica 

Salceda; and ACLU Foundation of Southern California, 

Julia A. Gomez for Caregiver Organization as Amicus 

Curiae on behalf of Defendants and Appellants

Law Office of Chad D. Morgan, Chad D. Morgan for 

Plaintiffs and Respondents

Public Interest Legal Foundation, J. Christian Adams; and 

Lex Rex Institute, Alexander Haberbush for J. Kenneth 

Blackwell as Amicus Curiae on behalf of Plaintiffs and 

Respondents

Immigration Reform Law Institute, Lorraine G. Woodwark 

as Amicus Curiae on behalf of Plaintiffs and 

Respondents